INZINGER V HOFMEYR AND OTHERS (7575/2010) [2010] ZAGPJHC 104 (4 NOVEMBER

2010)
THE PRINCIPLES RELATING TO EXCEPTIONS
4. An exception that a pleading is vague and embarrassing strikes at the formulation of
the cause of action and its legal validity. It is not directed at a particular paragraph
within a cause of action but at the cause of action as a whole, which must be
demonstrated to be vague and embarrassing. As was stated in Jowell v Bramwell-Jones
and others 1998 [1] SA 836 W at 905E-H:
“I must first ask whether the exception goes to the heart of the claim
and, if so, whether it is vague and embarrassing to the extent that
the defendant does not know the claim he has to meet…”
5. Vagueness amounting to embarrassment and embarrassment in turn resulting in
prejudice must be shown. Vagueness would invariably be caused by a defect or
incompleteness in the formulation and is therefore not limited to an absence of the
necessary allegations but also extends to the way in which it is formulated. An
exception will not be allowed, even if it is vague and embarrassing unless the excipient
will be seriously prejudiced if compelled to plead to pleading against which the
objection lies.
6. The approach to be adopted and applicable considerations were described as follows
in Trope v South African Reserve Bank 1992 [3] SA 208 T at `221A-E :
“An exception to a pleading on the ground that it is vague and
embarrassing involves a two-fold consideration. The first is whether
the pleading lacks particularity to the extent that it is vague. The
second is whether the vagueness causes embarrassment of such a
nature that the excipient is prejudiced (Quinlan v MacGregor 1960
(4) SA 383 (D) at 393E-H). As to whether there is prejudice, the ability
of the excipient to produce an exception-proof plea is not the only,
nor indeed the most important, test - see the remarks of Conradie J
in Levitan v Newhaven Holiday Enterprises CC 1991 (2) SA 297 (C) at
298G-H. If that were the only test, the object of pleadings to enable
parties to come to trial prepared to meet each other's case and not
be taken by surprise may well be defeated.
Thus it may be possible to plead to particulars of claim which can be
read in any one of a number of ways by simply denying the
allegations made; likewise to a pleading which leaves one guessing as
to its actual meaning. Yet there can be no doubt that such a pleading
is excipiable as being vague and embarrassing - see Parow Lands
(Pty) Ltd v Schneider 1952 (1) SA 150 (SWA) at 152F-G and the
authorities there cited.
It follows that averments in the pleading which are contradictory and
which are not pleaded in the alternative are patently vague and
embarrassing; one can but be left guessing as to the actual meaning
(if any) conveyed by the pleading.”
THE REQUIREMENTS OF RULE 18[4]
7. Rule 18[4] requires that each pleading in an action, as opposed to an affidavit in motion
proceedings
“…shall contain a clear and concise statement of the material facts
upon which the pleader relies for his claim … with sufficient
particularity to enable the opposite party to reply thereto.”
8. Rule 18[4] imposes a “Goldilocks test” in the sense that it requires a balance between
too few and too many allegations. Too few allegations could render it excipiable for
lack of the necessary averments whilst too many create the risk that unnecessary
allegations could render the pleading vague and embarrassing.
“A pleading should not contain matter irrelevant to the claim. The
facts whereon a plaintiff relies should be concisely stated in his
particulars of claim and these facts only, and no other, should be
pleaded. However, for the sake of clarity it is sometimes necessary to
plead history. The pleader should do this with caution. Unless such
history is clearly severed from the cause of action the pleading may
be rendered vague and embarrassing.”
Secretary for Finance v Esselmann 1988 [1] SA 594 SWA at 597G-H
9. The significance and requirements of Rule 18[4] were commented on in Trope v South
African Reserve Bank[supra] at 210G – J:
“It is, of course, a basic principle that particulars of claim should be
so phrased that a defendant may reasonably and fairly be required to
plead thereto. This must be seen against the background of the
further requirement that the object of pleadings is to enable each
side to come to trial prepared to meet the case of the other and not
be taken by surprise. Pleadings must therefore be lucid and logical
and in an intelligible form; the cause of action or defence must
appear clearly from the factual allegations made (Harms Civil
Procedure in the Supreme Court at 263-4). At 264 the learned author
suggests that, as a general proposition, it may be assumed that, since
the abolition of further particulars, and the fact that non-compliance
with the provisions of Rule 18 now (in terms of Rule 18(12)) amounts
to an irregular step, a greater degree of particularity of pleadings is
required. No doubt, the absence of the opportunity to clarify an
ambiguity or cure an apparent inconsistency, by way of further
particulars, may encourage greater particularity in the initial
pleading.
The ultimate test, however, must in my view still be whether the
pleading complies with the general rule enunciated in Rule 18(4) and
the principles laid down in our existing case law.”
10. This exception requires a consideration of what is required of pleadings, and in
particular particulars of claim, to meet the requirements of Rule 18[4] which seems to
postulate two basic requirements, both of which need to be met constitute compliance
 with Rule 18[4]. The first requirement [i.e. that the pleading should contain the “…
material facts upon which the pleader relies for his claim”] relates to the substance of a
pleading. The second requirement [i.e. that it should consist of a “…clear and concise
statement…” of “…sufficient particularity to enable the opposite party to reply thereto”]
deals with way in which a pleading should be formulated. Each of the requirements is
dealt with separately hereunder.

The “…material facts upon which the pleader relies for his claim”

11. The first requirement poses the question as to what “…material facts…” are. It requires
a pleading to disclose a cause of action or defence as the case may be, even if this may
not be expressly stated in Rule 18[4]. Rule 18[4] is however interpreted and applied as
requiring that a cause of action [or defence] must be contained in the pleading.
[See Makgae v Sentraboer [Koöperatief] Bpk 1981 [4] SA 239 T at 244C]
12. The term “cause of action” was defined in McKenzie v Farmers’ Co-operative Meat
Industries Ltd 1922 AD 16 at 23 as “…"every fact which it would be necessary for the
plaintiff to prove, if traversed, in order to support his right to the judgment of the Court.
It does not comprise every piece of evidence which is necessary to prove each fact, but
every fact which is necessary to be proved."
13. In Evins v Shield Insurance Co Ltd 1980 [2] SA 814 A at 825G it was said that “cause of
action “… is ordinarily used to describe the factual basis, the set of material facts, that
begets the plaintiff's legal right of action.” [my emphasis]
14. The requirement that a cause of action be contained in a pleading can and should
therefore be read into the words “material facts”, which would in turn imply that only
facts which serve to establish the cause of action would be regarded as “material”. The
converse also applies, namely that allegations that do not serve to establish the cause
of action would not qualify as being “material”.
15. The need to distinguish between facta probanda and facta probantia is a further aspect
of the requirement that material facts only be pleaded. [See Makgae v Sentraboer
[Kooperatief] Bpk supra at 244C-H] Facta probanda should be distinguished from
“pieces of evidences” [facta probantia] required to prove the true facta probanda.
[King's Transport v Viljoen 1954 (1) SA 133 (K) at 138 – 139] As was remarked
in Dusheiko v Milburn 1964 (4) SA 648 (A) at 658A:
"I venture to think that most difficulties will in practice be resolved if, in applying
the definition stated in McKenzie v Farmers' Co-operative Meat
Industries Ltd (supra) to any given case, it is borne in mind that the
definition relates only to 'material facts', and if at the same time due
regard be paid to the distinction between the facta probanda and the
facta probantia."
16. Facta probantia has no place in a pleading and the contents of any pleading should be
restricted to those facts only which serve to establish the cause of action, excluding any
evidence required to prove them.
 17. A pleader’s own opinions and conclusions should equally be excluded from his
pleading. Commenting on Rule 18[4] De Klerk J in Buchner and another v Johannesburg
Consolidated Investment Co Ltd 1995 [1] SA 215 T at 216H-J stated the following:
“I emphasize the words 'shall contain a clear and concise statement
of the material facts'.
The necessity to plead material facts does not have its origin in this
Rule. It is fundamental to the judicial process that the facts have to
be established. The Court, on the established facts, then applies the
rules of law and draws conclusions as regards the rights and
obligations of the parties and gives judgment. A summons which
propounds the plaintiff's own conclusions and opinions instead of
the material facts is defective. Such a summons does not set out a
cause of action. It would be wrong if a Court were to endorse a
plaintiff's opinion by elevating it to a judgment without first
scrutinizing the facts upon which the opinion is based.”
The learned Judge continued at 217E-G:
“The conclusion that the appellants are liable can only be reached or
justified if those terms support the conclusion set out in the
summons. … I realise that the exposition of the facts contained in a
summons is no more than the pleader's opinion, or of his averment
as to what the facts are. If such a statement is not disputed those
alleged facts have to be accepted as proven. An opinion or
conclusion as to what the parties' liabilities are, even if undisputed,
does not become a statement of fact and a failure to dispute the
conclusion is of no consequence.”
18. This first requirement of necessity puts the pleader’s legal knowledge of what the
necessary allegations or essential elements are to sustain a cause of action to the test.
As Hiemstra J so aptly reminded all would-be pleaders:
“The case will have to turn mainly on the pleadings, and it vividly
illustrates the truth of what the late Prof. Wille used to say:
‘Before you can draw a pleading you've got to know the law.’"
Alphedie Investments [Pty] Ltd v Greentops [Pty] Ltd 1975 [1] SA 161 T at
161H
A “…clear and concise statement…” of “…sufficient particularity to enable the opposite party
to reply thereto”
19. Whereas the first requirement concerns itself with the substantive law, the second
requirement relates to the formulation and structure of the pleading in determining
whether the pleading contains a “…clear and concise statement…” of “…sufficient
particularity to enable the opposite party to reply thereto”.
20. The judgment in Imprefed [Pty] Ltd v National Transport Commission 1993 [3] SA 94 A
at 107C - E serves as a useful point of departure in analysing this requirement:
“At the outset it need hardly be stressed that:
 'The whole purpose of pleadings is to bring clearly to the notice of the Court
and the parties to an action the issues upon which reliance is to
be placed.'
(Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) at 1082.)
This fundamental principle is similarly stressed in Odgers' Principles
of Pleading and Practice in Civil Actions in the High Court of Justice
22nd ed at 113:
'The object of pleading is to ascertain definitely what is the
question at issue between the parties; and this object can only be
attained when each party states his case with precision.'
The degree of precision obviously depends on the circumstances of
each case.”
21. To achieve this goal it has been stated that
“Pleadings must be lucid, logical and intelligible. A litigant must plead
his cause of action or defence with at least such clarity and precision
as is reasonably necessary to alert his opponent to the case he has to
meet. A litigant who fails to do so may not thereafter advance a
contention of law or fact if its determination may depend on
evidence which his opponent has failed to place before the court
because he was not sufficiently alerted to its relevance.”
National Director of Public Prosecutions v Phillips and others 2002 [4] SA 60
W at 106E-H
22. Aside from carefully formulating sentences and choosing the language the structure of
a pleading will be determinative whether it meets the requirements of conciseness,
lucidity, logic, clarity and precision. Pleadings that are “…a rambling preview of the
evidence proposed to be adduced at the trial…” do not meet the requirements of clause
18[4] and would be excipiable as being vague and embarrassing.
[See Moaki v Reckitt and Colman [Africa] and another  1968 [3] SA 98 A at
102A-B;
23. It follows that the more complex the matter is the greater would be the demands for
conciseness, lucidity, logic, clarity and precision. [See Swissborough Diamonds Mines
[Pty] Ltd and others v Government of the Republic of South Africa and others 1999 [2]
SA 279 T at 324C; Imprefed [Pty] Ltd v National Transport Commission, supra, at 107C]
24. It follows that the more complex the matter is the greater would be the demands for
conciseness, lucidity, logic, clarity and precision. [See Swissborough Diamonds Mines
[Pty] Ltd and others v Government of the Republic of South Africa and others 1999 [2]
SA 279 T at 324C; Imprefed [Pty] Ltd v National Transport Commission, supra, at 107C]
25. The Rules provide a valuable indication of structure to be adopted. Rule 18[3] requires
that “Every pleading shall be divided into paragraphs [including sub-paragraphs] which
shall be consecutively numbered and shall, as nearly as possible, each contain a distinct
averment.”, whereas Rule 20[2] relating to declarations require that a declaration “…
shall set forth the nature of the claim, the conclusions of law which the plaintiff shall be
 entitled to deduce of the claim from the facts stated therein and a prayer for the relief
claimed.” The same should apply to particulars of claim.
26. Arising from the above following structure has been suggested for every pleading
which has to set out a cause of action. Firstly the material facts that are relied on for
the cause of action should be pleaded. This should be followed by any conclusions of
law, which the pleader claims follow from the pleaded facts, provided that facts and
conclusions of law be kept separate. Finally the pleading should conclude with the
relief sought. The structure suggests that the facts must set out the premises for the
relief sought i.e. they must be such that the relief prayed flows from them and can be
properly granted. [Prinsloo v Woolbrokers Federation Ltd 1955 [2] SA 298 N at 299E]
The observation in Trope and others v South African Reserve Bank 1993 [3]
SA 264 A at 273A applies:
“It is not sufficient, therefore, to plead a conclusion of law without
pleading the material facts giving rise to it”
27. It should not be overlooked that more than one claim in the same particulars of claim
of necessity implies that the plaintiff is relying on more than one cause of action. The
material facts in respect of each cause of action should be pleaded separately and in
such a manner that would enable the other party to reply thereto. This requirement
means that each claim should pass the test of disclosing a cause of action. If material
facts common to more than one claim are pleaded, such facts should be repeated in
respect of each claim or be incorporated by express reference. It is not permissible to
rely on facts pleaded in one claim to support another claim without an express
reference thereto. Such a approach would force the other party or the court
to sort them judiciously and fit them together in an attempt to
determine the real basis of the claim”
Roberts Construction Co Ltd v Dominion Earthworks [Pty] Ltd  1968 [3] SA
255 at 263A]
28. By the same token the demands of lucidity and clarity would not permit references to
or reliance on documents or pleadings in other proceedings that are not attached to
the pleading, even if such documents and their contents are within the knowledge of
the other party. The pleadings also serve to inform the court of the issues.